The General Counsel, Gatekeeping, and the Public Interest: Uneasy Bedfellows?

Abstract

This paper examines the role of the General Counsel across Canadian and American comparisons, specifically with reference to Enron, Livent, and Hollinger cases of fraud. The General Counsel has been within a debate concerning their heightened role for disclosure in the American Sarbanes-Oxley Act. The General Counsel is in a unique position as both a business executive, and a law professional that can mediate their ethical obligations as a professional, as well as their fiduciary obligations as a corporate executive. Two models of responsibility will be examined: that of transaction engineer, and that of gatekeeper. Transaction engineer is primarily situated as a means of maximizing value for the corporation through the general counsel’s legal expertise, and this can include “loophole lawyering.” In such a context, Counsel may be failing to provide adequate representation for corporate fiduciary responsibilities, as well as their ethical responsibility to not undermine the law in the pursuit of aggressive competitive advantage and short-term profit.